Penn v. Gallagher

2015 Ark. 354

• Court: Supreme Court of Arkansas
• Decided: October 1, 2015
• Docket: CV-15-397
• Status: Published

Opinion

Cite as 2015 Ark. 354

SUPREME COURT OF ARKANSAS No. CV-15-397

ALLEN LYNN PENN Opinion Delivered October 1, 2015 PETITIONER PRO SE PETITION TO PROCEED IN V. FORMA PAUPERIS [PULASKI COUNTY CIRCUIT COURT, NO. ____] RICHARD GALLAGHER, CUSTODIAN OF RECORDS, ARKANSAS STATE HONORABLE TIMOTHY DAVIS FOX, CRIME LAB, AND KERMIT B. JUDGE CHANNELL, EXECUTIVE DIRECTOR, ARKANSAS STATE CRIME LAB REMANDED WITH DIRECTION FOR RESPONDENTS SUBMISSION WITHIN TEN DAYS OF CERTIFIED, FILE-MARKED COPY OF PETITION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND ORDER DENYING PETITION.

PER CURIAM

In the instant petition to proceed in forma pauperis, petitioner Allen Lynn Penn seeks

leave to file a motion for rule on clerk to lodge the record without paying the filing fee required

to file such a motion. Penn appended his affidavit of indigency to the petition and also tendered

the motion for rule on clerk to the court for filing.

The record before us reflects that Penn tendered for filing in the Pulaski County Circuit

Court a pro se petition for leave to proceed in forma pauperis with respect to a petition for writ

of mandamus and also a proposed order granting leave to proceed in forma pauperis. The

record further reflects that the proposed order granting leave to proceed in forma pauperis was

marked with a handwritten notation of the date, December 10, 2014, and “Petition Denied,” and

it appears to be initialed by Circuit Judge Timothy Davis Fox with the initials, “TDF.” Neither Cite as 2015 Ark. 354

the petition to proceed in forma pauperis nor the order was filed-marked by the circuit clerk or

assigned a case number. On January 12, 2015, Penn filed a notice of appeal from the denial of

his petition to proceed in forma pauperis; the notice of appeal does bear a file-mark and was

assigned a miscellaneous case number used to docket documents not associated with a specific

case. Per the circuit clerk’s certificate of record, the petition and order in the instant case were

not file-marked or assigned a case number because the motion to proceed in forma pauperis was

denied and no filing fee was submitted; thus, according to the circuit clerk, no civil action was

filed that would require the assignment of a case number.

On April 14, 2015, Penn timely tendered the appeal record to the clerk of this court. The

record was rejected by the clerk, however, because it lacked a file-marked copy of the order from

which Penn seeks to appeal.

We find that proper consideration cannot be given to Penn’s petition to proceed in forma

pauperis filed in this court without a certified, file-marked copy of the petition to proceed in

forma pauperis that Penn filed in circuit court and a certified, file-marked copy of the circuit

court order denying Penn’s petition. Accordingly, we remand the matter to the circuit court

with direction that the Pulaski County Circuit Clerk submit to this court within ten days a

certified, file-marked copy of the petition and the order denying it.

Remanded with direction for submission within ten days of certified, file-marked copy

of petition for leave to proceed in forma pauperis and order denying petition.